Winooski: Council weighs cost of F-35 lawsuit

The City of Winooski has sought legal advice as it explores options for joining a lawsuit regarding the basing of F-35 fighter planes in Chittenden County — though legal opinions conflict as the city moves closer to making its decision.

Plaintiffs who filed the case in U.S. District Court say the Air Force failed to provide enough information in the report it released in April 2014. At issue is whether the Air Force underestimated the level of noise and its potential impact on health, property values and safety for those in the flight locations.

The City Council addressed possible participation on March 16. Mayor-elect Seth Leonard said he is unsure if the City Council is close to a decision, but that it will continue lawsuit discussions Monday.

By the next meeting’s end, councilors hope to have a proposal on which they can vote April 20.

“I don’t expect this to be a long, drawn-out process,” Leonard said in an interview, adding that the schedule is not completely set.

Winooski residents voted on Town Meeting Day, 572-475, to approve an advisory article asking the city to enter a federal lawsuit against U.S. Secretary of the Air Force Deborah Lee James. The city would join the Stop the F-35 Coalition and six Chittenden County residents as plaintiffs. Four of the individual plaintiffs are residents of Winooski.

In approving the advisory question, Winooski residents also approved the city’s spending $7,500 on legal services, though lawyer Robert DiPalma says the actual costs of joining the lawsuit could far exceed that sum.

The decision of whether to join is up to the City Council, Leonard has said.

“It’s our fiduciary, moral and otherwise, responsibility to make sure we’re taking care of the city in the best way we can,” Leonard said at the meeting, according to a video recording by the CCTV Center for Media and Democracy.

The city has passed two resolutions on the issue, first in May 2012 and again in July 2013. Leonard said that some of the questions posed in the last resolution have yet to be answered.

Lawsuit lawyer James Dumont pointed out during the mid-March meeting that several of the resolution’s questions align with questions presented in the lawsuit.

A variety of options were presented to the City Council at its meeting by lawyer Robert DiPalma of Paul Frank and Collins law firm. Leonard said DiPalma is one of several lawyers with whom the city works.

Among the city’s options are joining as a full party, filing as a “friend of the court,” passing another resolution, or taking no action whatsoever. Each choice contains a different level of liability for the city, raising questions of how much the city will spend and how influential their entry could be in the case.

While Dumont said Winooski’s entrance will sway the court toward the plaintiffs’ side, DiPalma disagreed.

“The consequences of joining the lawsuit are a little uncertain,” DiPalma said. “It doesn’t appear to me that the addition of Winooski as a party to the case is going to have an impact on the outcome of the case.”

The F-35 fighter jet. (Photo: COURTESY)

DiPalma: Follow the money

If the city chooses to enter the lawsuit as a full party, DiPalma said he believes the city’s ability to stick to its $7,500 budget “is going to be a real challenge, and very well may not be a possibility.”

According to DiPalma, $7,500 could be spent quickly on lawyer fees and fees that could come up in the discovery process when information is exchanged between parties in the case — though Dumont said the costs would not be very excessive.

DiPalma also raised the possibility of the judge awarding a sum of money to the winning party. If the plaintiffs were to lose the lawsuit, this could be difficult for the city to pay back, DiPalma said.

Councilor Brian Corrigan suggested that the council explore the money issue more at the April 6 meeting.

“I have an issue with us suddenly entering into this lawsuit, and the fees are exceeding, or far exceeding $7,500, and all of a sudden we’re looking at a bundle of cash that we have to come up with in a budget that we were very tight with to begin with,” he said. “I see that as a problem.”

Councilor Robert Millar said the city also should be cognizant of staff time spent on the lawsuit as well. Millar said the council should explore more creative options where the city can participate to a certain level in the suit, but not incur as many fees.

“While advisory, it did send a pretty clear signal,” Millar said of the Town Meeting Day vote result. “I think that exploring more full-participation options is what we’re being asked to do by the citizens.”

Buy Photo2012: From left, Winooski Mayor Mike O’Brien checks decibel level on an F-16 preparing for takeoff along with Gov. Peter Shumlin and Burlington Mayor Miro Weinberger during a demonstration at Eglin Air Force Base in Florida. The meter showed levels similar to the F-35. (Photo: FREE PRESS FILE)

Dumont: Swaying the court

If the city enters the lawsuit as a full party, lawsuit lawyer Dumont said the entrance will most likely be factored into federal Judge Geoffrey Crawford’s final decision, motivating him to rule in the plaintiffs’ favor.

Dumont said the judge may see Winooski’s entry as a move to protect its people.

“When a city speaks, you’re speaking as a parent advocating for the interests of your children,” Dumont said. “The judge we have is a very good judge, he’s very smart and he also has a big heart.”

The question at hand — whether the Air Force followed regulations laid out by the National Environmental Protection Agency in crafting its environmental impact statement — is too technical for the city to have an impact on the judge’s decision, DiPalma said.

“If you look at some of the issues before the judge, it’s not necessarily going to pull at your heartstrings,” DiPalma said. “The way I see this case is, ‘Did you comply with NEPA?’ That’s pretty dry. My view is that adding a party, such as a municipality, is not going to move the needle for the judge all that much, but I’m willing to listen to other opinions.”

Councilor Nicole Mace suggested the city look at how passing another resolution or filing a court brief would possibly affect the case. Mayor Leonard said the council could explore that option further at the next meeting.

An early version of the F-35 takes off from Fort Worth Texas. (Photo: COURTESY)

‘You own the question’

Winooski residents at the City Council meeting urged the council to think seriously the question approved on Town Meeting Day.

George Cross, who presented the original petition to join the suit, reiterated that the lawsuit’s questions parallel questions raised in the city’s past resolutions.

“Those answers have not been provided,” Cross said. “The people of Winooski have spoken. They said we want you, even though it was advice, to join this lawsuit on our behalf.”

“You own the question,” Cross added.

Opinions on the question were fairly split on Town Meeting Day, resulting in a 572-475 vote to approve the article. Winooski had 5,496 registered voters as of this year’s annual meeting. Several residents on Town Meeting Day told the Burlington Free Press that they voted to approve the F-35 question to keep the issue alive, and not so the city would actually join the suit.

Resident Michael Mahoney said the Air Force did a thorough environmental impact study — but only “to a point.”

“The issue regarding the lawsuit is that the EIS is incomplete,” Mahoney said at the meeting. “All we’re asking is that they complete it … I think you as the City Council, representing us, would also want to get the answers to those same questions.”

Mayor Leonard and City Councilor Mace said they are open to all options as they go forward.

Mace said she is “eager to hear what additional information and analysis our attorneys and staff have obtained” since the March 16 meeting.

“I look forward to discussing those options as a full Council on the 6th and am confident that we will arrive at a decision that is in the best interests of the City of Winooski and its residents,” Mace said in an email.

Contact Elizabeth Murray at 651-4835 or emurray@freepressmedia.com. Follow her on Twitter at www.twitter.com/LizMurraySMC.